Cecil R. SHOWS, Plaintiff-Appellant, v. the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

Eleventh Circuit

Cecil R. SHOWS, Plaintiff-Appellant, v. the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

740 F.2d 891, 1984 U.S. App. LEXIS 19022, 6 Soc. Serv. Rev. 182

CourtCourt of Appeals for the Eleventh Circuit

DecidedAugust 31, 1984

Docket83-7540

StatusPublished

Cited by4 cases

This text of 740 F.2d 891 (Cecil R. SHOWS, Plaintiff-Appellant, v. the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cecil R. SHOWS, Plaintiff-Appellant, v. the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee, 740 F.2d 891, 1984 U.S. App. LEXIS 19022, 6 Soc. Serv. Rev. 182 (11th Cir. 1984).

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Opinion

PER CURIAM:

Cecil R. Shows’ complaint for judicial review of the administrative denial of disability insurance benefits under the Social Security Act was dismissed sua sponte prior to service on The Department of Health and Human Services. The court held it lacked jurisdiction since judicial review was not sought within 60 days of the Appeals Council decision. We reverse and remand, because the 60-day time limit specified in 42 U.S.C.A. § 405(g) is not jurisdictional and is waivable so that the Government must be served.

42 U.S.C.A. § 405(g) provides for judicial review of the Secretary’s final decision if the action is commenced within 60 days from receipt of the Appeals Council’s letter. An additional five-day period is provided for mail service. 20 C.F.R. § 422.-210. The Appeals Council letter is dated April 8, 1983. The 65-day period ended on Sunday, June 12,1983. Pursuant to Fed.R. Civ.P. 6(a), the period was extended to Monday, June 13, 1983. Shows filed his complaint in the district court on July 15, 1983 over a month after the period for commencing review had expired.

In Rowland v. Califano, 588 F.2d 449, 450 & n. 2 (5th Cir.1979), this Court held that a complaint was erroneously dismissed on the ground that filing “outside the sixty day statutory time period deprived the Court of jurisdiction” where the issue of compliance was not raised in the district court. The court relied on the Supreme Court’s decisions in Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47 L.Ed.2d 18 (1976); Weinberger v. *892 Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), which held the 60-day time period in § 405(g) to be a statute of limitations and waivable by the parties. See Hatchell v. Heckler, 708 F.2d 578, 580 n. 1 (11th Cir.1983).

The district court erred in dismissing sua sponte the action prior to service. See Combee v. Shell Oil Co., 615 F.2d 698, 700-01 (5th Cir.1980); Fed.R.Civ.P. 8(c).

REVERSED and REMANDED.

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PER CURIAM:

Cecil R. Shows’ complaint for judicial review of the administrative denial of disability insurance benefits under the Social Security Act was dismissed sua sponte prior to service on The Department of Health and Human Services. The court held it lacked jurisdiction since judicial review was not sought within 60 days of the Appeals Council decision. We reverse and remand, because the 60-day time limit specified in 42 U.S.C.A. § 405(g) is not jurisdictional and is waivable so that the Government must be served.

42 U.S.C.A. § 405(g) provides for judicial review of the Secretary’s final decision if the action is commenced within 60 days from receipt of the Appeals Council’s letter. An additional five-day period is provided for mail service. 20 C.F.R. § 422.-210. The Appeals Council letter is dated April 8, 1983. The 65-day period ended on Sunday, June 12,1983. Pursuant to Fed.R. Civ.P. 6(a), the period was extended to Monday, June 13, 1983. Shows filed his complaint in the district court on July 15, 1983 over a month after the period for commencing review had expired.

In Rowland v. Califano, 588 F.2d 449, 450 & n. 2 (5th Cir.1979), this Court held that a complaint was erroneously dismissed on the ground that filing “outside the sixty day statutory time period deprived the Court of jurisdiction” where the issue of compliance was not raised in the district court. The court relied on the Supreme Court’s decisions in Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47 L.Ed.2d 18 (1976); Weinberger v. *892 Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), which held the 60-day time period in § 405(g) to be a statute of limitations and waivable by the parties. See Hatchell v. Heckler, 708 F.2d 578, 580 n. 1 (11th Cir.1983).

The district court erred in dismissing sua sponte the action prior to service. See Combee v. Shell Oil Co., 615 F.2d 698, 700-01 (5th Cir.1980); Fed.R.Civ.P. 8(c).

REVERSED and REMANDED.

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740 F.2d 891, 1984 U.S. App. LEXIS 19022, 6 Soc. Serv. Rev. 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cecil-r-shows-plaintiff-appellant-v-the-department-of-health-and-human-ca11-1984.

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